10-3916-cr
United States v. Siddiqui
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of November, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 Circuit Judges,
9 ROSLYNN R. MAUSKOPF,
10 District Judge.*
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-3916-cr
18
19 AAFIA SIDDIQUI,
20
21 Defendant-Appellant.**
22
23
24 FOR APPELLANT: DAWN M. CARDI (Chad L. Edgar, on the
25 brief), Dawn M. Cardi & Associates, New
26 York, NY.
*
The Honorable Roslynn R. Mauskopf, of the United States District Court
for the Eastern District of New York, sitting by designation.
**
The Clerk of the Court is respectfully directed to amend the caption
to conform with the above.
1 FOR APPELLEE: JENNA M. DABBS, JESSE M. FURMAN,
2 Assistant United States Attorneys
3 (Christopher L. Lavigne, Assistant United
4 States Attorney, on the brief), for Preet
5 Bharara, United States Attorney for the
6 Southern District of New York, New York,
7 NY.
8
9 Appeal from the United States District Court for the
10 Southern District of New York (Berman, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the United States District
14 Court for the Southern District of New York be AFFIRMED.
15 Appellant Aafia Siddiqui appeals from a judgment of the
16 United States District Court for the Southern District of
17 New York (Berman, J.), convicting her after a jury trial of
18 numerous offenses and sentencing her principally to 86
19 years’ imprisonment. In an accompanying published opinion,
20 we address five issues that Siddiqui raises on appeal. We
21 address the remaining issues herein. We assume the parties’
22 familiarity with the underlying facts, the procedural
23 history, and the issues presented for review.
24 Siddiqui contends that reversal is warranted because
25 the district court admitted testimonial hearsay in violation
26 of Crawford v. Washington, 541 U.S. 36 (2004), and that the
27 error was not harmless beyond a reasonable doubt. Her
2
1 argument follows several steps. She claims that the
2 testimony of two United States Army officers that they were
3 informed by certain Afghan officials that Siddiqui was in
4 possession of incendiary documents at the time of her arrest
5 violated Crawford. Siddiqui argues that without this
6 testimony, the government could not establish that Siddiqui
7 possessed the documents when she was arrested. And
8 according to Siddiqui, because the “real relevance” of the
9 documents is that Siddiqui possessed them in close proximity
10 (in time) to the shooting incident, the documents would have
11 been excluded under Federal Rule of Evidence 403 but for the
12 officers’ testimony.
13 Siddiqui’s Crawford challenge stumbles at its first
14 step. The Confrontation Clause bars only testimonial
15 hearsay used to establish the truth of the matter asserted.
16 See United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir.
17 2006). A testimonial statement is “a solemn declaration or
18 affirmation made for the purpose of establishing or proving
19 some fact.” Michigan v. Bryant, 131 S.Ct. 1143, 1153 (2011)
20 (internal quotation marks and brackets omitted). Typical
21 testimonial statements include affidavits, depositions, and
22 grand jury testimony. See Crawford, 541 U.S. at 51-52. The
3
1 outer bounds of what constitutes a testimonial statement
2 remain unclear. But “the critical factor in identifying a
3 Confrontation Clause concern is the declarant’s awareness or
4 expectation that his or her statements may later be used at
5 trial.” United States v. Farhane, 634 F.3d 127, 163 (2d
6 Cir. 2011) (internal quotation marks omitted).
7 Here, we have little doubt that the Afghan officials
8 had no expectation or awareness that their statements
9 regarding what documents were found on Siddiqui when she was
10 arrested would later be used at a trial. When these
11 statements were made, Siddiqui had not yet fired upon the
12 American interview team. The United States’ interest in
13 Siddiqui was primarily military in nature. This is
14 underscored by the fact that the statements were conveyed to
15 American military personnel, not domestic law enforcement
16 officers. As such, there was no Crawford violation. See
17 Bryant, 131 S.Ct. at 1154.
18 We note also that the government did not offer these
19 statements to prove the truth of the matter asserted, but
20 rather to show their effect on the listeners–in other words,
21 to explain the United States' interest in interviewing
22 Siddiqui. The district court gave a limiting instruction to
4
1 this effect. Even if, as Siddiqui appears to contend,
2 allowing the testimony was impermissible under hearsay
3 rules, such an error would be harmless because (1) there was
4 other evidence that strongly suggested the documents were in
5 Siddiqui's possession at the time of her arrest; and (2) as
6 explained in the accompanying published opinion, admission
7 of the documents was harmless.
8 Next, in an argument that she herself characterizes as
9 advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui
10 contends that the district court committed reversible error
11 in failing to give an instruction to the jury requiring them
12 to be unanimous as to the specific identity of Siddiqui’s
13 intended victims for the attempted murder counts. We
14 disagree.
15 The statutes at issue here prohibit the attempted
16 killing of “a national of the United States,” 18 U.S.C. §
17 2332, and “any officer or employee of the United States
18 while such officer or employee is engaged in or on the
19 account of the performance of official duties,” 18 U.S.C. §
20 1114. Because the statutes do not specify the elements of
21 “attempt to kill,” the elements are those required for
22 attempted murder at common law, which include an intent to
5
1 kill. See Braxton v. United States, 500 U.S. 344, 351 n.*
2 (1991).
3 Federal juries must be unanimous as to each element of
4 an offense. Richardson v. United States, 526 U.S. 813, 817
5 (1999). However, “a federal jury need not always decide
6 unanimously which of several possible sets of underlying
7 brute facts make up a particular element.” Id. “[F]or
8 example, [where] an element of robbery is force or the
9 threat of force, some jurors might conclude that the
10 defendant used a knife to create the threat; others might
11 conclude he used a gun. But that disagreement–a
12 disagreement about means–would not matter as long as all 12
13 jurors unanimously concluded that the Government had proved
14 the necessary related element, namely, that the defendant
15 had threatened force.” Id. Courts have not developed a
16 bright line test for distinguishing between an element of a
17 crime and a “brute fact.” Instead, they look to the
18 statutory language, tradition, and fairness concerns, such
19 as the likelihood that treating a fact as a means rather
20 than an element would allow “wide disagreement among the
21 jurors about just what the defendant did, or did not, do”
6
1 and the risk that the jury may convict on bad reputation
2 alone. Id. at 819.
3 Here, the relevant statutory language—prohibiting the
4 attempted killing of “a national” and “any officer or
5 employee—suggests that Congress did not intend that the
6 government had to prove that the defendant had a particular
7 individual in mind as an element of the crime. Cf. United
8 States v. Talbert, 501 F.3d 449, 451 (5th Cir. 2007); United
9 States v. Verrecchia, 196 F.3d 294, 299 (1st Cir. 1999).
10 Viewing the identity of the intended victim as a “brute
11 fact” rather than as an element does not implicate fairness
12 concerns. It does not allow for wide juror disagreement as
13 to the defendant’s acts and does not create or aggravate the
14 risk that the jury would convict on bad reputation alone.
15 See Richardson, 526 U.S. at 819.
16 Indeed, a contrary interpretation would lead to absurd
17 results. For instance, under Siddiqui’s interpretation of
18 the statute, a defendant who fired one shot at a group of
19 United States employees or nationals with the intent to
20 indiscriminately kill one of them, but not an intent to kill
21 a particular individual, could not be convicted under the
7
1 statutes. For these reasons, we reject Siddiqui’s argument
2 that the district court was required to instruct the jury
3 that they had to be unanimous as to which United States
4 employee or national Siddiqui intended to kill.
5 The final three arguments that Siddiqui advances
6 concern sentencing. She contends that the district court
7 erred by refusing to “horizontally depart” in her criminal
8 history category and thereby to mitigate the effects of the
9 terrorism enhancement on her sentence. We will not review a
10 district court’s refusal to alter a criminal history
11 category unless the court “misapprehended the scope of its
12 authority to depart or the sentence was otherwise illegal.”
13 United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005);
14 see United States v. Stinson, 465 F.3d 113, 114 (2d Cir.
15 2006). Because there is nothing in the record to suggest
16 that the district court did not appreciate or understand its
17 authority to depart or that the sentence was otherwise
18 illegal, we reject Siddiqui’s argument.
19 Next, in a somewhat unfocused argument, Siddiqui
20 contends that (1) “the district court erred procedurally by
21 not providing notice to defense counsel that recidivism was
8
1 going to be a predominant concern” at sentencing; and (2)
2 the district court imposed a “substantively unreasonable”
3 sentence by finding that without treatment Siddiqui was
4 likely to be a recidivist, and thereby drew conclusions that
5 were clearly the province of mental health professionals.
6 Siddiqui Reply Br. 49. Siddiqui’s claim of procedural error
7 predicated on lack of notice is without merit. Indeed, the
8 very Supreme Court case on which Siddiqui relies notes that
9 “[g]arden variety considerations of culpability, criminal
10 history, likelihood of re-offense, seriousness of the crime,
11 nature of the conduct, and so forth should not generally
12 come as a surprise to trial lawyers who have prepared for
13 sentencing.” Irizarry v. United States, 553 U.S. 708, 716
14 (2008) (internal quotation marks omitted) (emphasis added).
15 In addition, and more importantly, defense counsel, in their
16 sentencing submission to the district court, explicitly
17 addressed the issue, writing: "We understand that the Court,
18 in light of our continued emphasis upon Dr. Siddiqui's
19 serious mental illness and the role it played in her offense
20 conduct, has to speculate as to Dr. Siddiqui's future
21 dangerousness when addressing the issue as to what sentence
22 will protect the public from her." JA 3095.
9
1 Nor did the district court improperly invade the
2 province of mental health professionals when it commented on
3 the defendant’s likelihood of recidivism. Contrary to
4 Siddiqui’s contentions, the district court’s comments here
5 are a far cry from the comments to which this Court took
6 exception in United States v. Cossey, 632 F.3d 82, 88 (2d
7 Cir. 2011), and United States v. Dorvee, 616 F.3d 174, 183-
8 84 (2d Cir. 2010). Moreover, the district court relied on
9 other factors–such as the seriousness of the offense and the
10 need for general deterrence–in fashioning its sentence.
11 Under the circumstances of this case, a sentence of 86
12 years’ imprisonment is substantively reasonable.
13 Finally, we need not address Siddiqui’s claim that the
14 district court erred in finding that her conduct was
15 premeditated. Even without a finding of premeditation,
16 Siddiqui’s Guidelines range would have been life
17 imprisonment. As such, the district court characterized the
18 dispute regarding premeditation as academic before
19 addressing the issue. Any error in finding Siddiqui’s
20 conduct to be premeditated would be harmless. See United
21 States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).
10
1 After a thorough review of the record, we find
2 Siddiqui’s remaining arguments to be without merit.
3 For the foregoing reasons, and for the reasons stated
4 in the accompanying published opinion, the judgment of the
5 district court is hereby AFFIRMED.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11